Dilboo & Ors Vs. Smt. Dhanraji & Ors  INSC 474 (12 September 2000)
KHARE J. & S.N. VARIAVA J. S. N. VARIAVA,J.
This Appeal is against an Order dated 13th July 1982 in a Second Appeal No. 2100 of 1973
wherein the High Court has proceeded to appreciate evidence and on questions,
purely of fact, overruled concurrent findings of facts by two Courts below.
Cross objections have been filed by the 1st Respondent against directions in the
impugned Judgment to have ascertained, amongst others, the state of the
different parts or portions of the suit property and improvements made therein
and their value. Briefly stated the facts are as follows: On 30th August 1902 Smt. Lakshamania widow of Narayan
Sonar mortgaged two houses and twenty trees in favour of Ram Charan Sonar. The
mortgage was for a sum of Rs. 499/-. It is claimed by the Appellants that Ram
Charan Sonar and his brother Swaroop Sonar were already staying in the suit
property with Narayan Sonar. The said Smt.
died on 3rd November,
1908. One Smt. Piyari,
claiming to be the nearest heir of the husband of Smt.
filed Suit No. 328 of 1908 and made a claim to the suit property. This Suit was
dismissed on the ground that Smt. Piyari was not an heir of Shri Narayan or of
One Shri Bharat Sonar, claiming to the heir of Smt. Laxmina, filed Suit No. 17
of 1914 making a claim to the suit property. This Suit was also dismissed on
the ground that Shri Bharat Sonar was not an heir of Smt.
In this Suit Ram Charan Sonar and Swaroop Sonar had averred, in their written
statement, that the suit property had come to them under an oral Will by Shri
Narayan. Thus as far back as in 1914/1915 Ram Charan Sonar and Swaroop Sonar
set up a title adverse to the estate. To be remembered that Swaroop Sonar was
not a mortgagee under the mortgage deed of 1902. On 12th September 1916 Ram Charan Sonar and Swaroop Sonar executed a
mortgage in favour of one Hanuman. This mortgage was in respect of one of the
houses (which for sake of convenience is called the 'southern house). The
mortgage was for a fixed period of 10 years. Thus the rights of the mortgagor
to redeem within the period of 10 years was being affected. Also, as indicated
above, Swaroop Sonar was not a mortgagee. He had already claimed ownership of
this property in suit No, 17 of 1914. Now he was mortgaging as owner. Thus an
interest in excess of the interest of the mortgagee was being created.
mortgagee Hanuman was put in possession of the southern house as a mortgagee.
On 26th October, 1942 Ram Charan Sonar sold a part of the
other house (which for sake of convenience is called the northern house) to one
Ram Charan Teli. We have seen the sale deed. Ram Charan Sonar described the
northern house as my personal property.
Ram Charan Sonar sold not as a mortgagee but as an absolute owner. Thus again
an interest in excess of the interest of a mortgagee was created. Ram Charan
Teli was put in possession of the house sold to him. On 4th December, 1948 Appellant No. 8 (who is the son of
Ram Charan Sonar) along with Appellant No. 9 (who is the son of Swaroop Sonar)
sold the southern house to Ramraj and Lakshman. The Sale Deed was registered on
15th January, 1949. Ramraj and Lakshman were given a
right to redeem the mortgage from Hanuman. This sale property. was also on the
footing that the sellers were owners of the On 20th December, 1954 Ram Charan Teli sold the house to Lakhan and Mahavir
Kandu. They were put in possession of the house.
Raj and Laxman filed Suit No. 85 of 1959 against Hanuman for redemption of the
mortgage. In this Suit objections were sought to be taken by some of the
predecessors in title of the present Respondent No. 1.
Suit was compromised and on the basis of the compromise a decree for redemption
was passed against Hanuman and in favour of Ram Raj and Lakshman. By two sale
deeds dt. 1st March
1960 and 21st March 1960 Sita Ram, Ganesh, Bechni, Rajwanti,
Bhoju and Bhuwel, claiming to be the heirs of Smt.
sold their equity of redemption to the 1st Respondent. On 25th February 1963 two further sale deeds confirming
the earlier two sale deeds were executed. These were got registered. On 4th October 1960 i.e. before the registration of the
subsequent sale deeds, Respondent No. 1 demanded redemption of the mortgage
executed as far back as on 30th August, 1902.
This was refused and, therefore, the 1st Respondent filed the present Suit,
i.e. Suit No. 3 of 1961, for redemption of mortgage. In this suit 1st Defendant
was the son of Ram Charan Sonar. The 2nd Defendant was the grandson of Swaroop
Sonar. Ramraj and Lakshman were Defendants 4 and 5 respectively. Lakhan and
Mahavir Khandu were Defendants 5 and 6 respectively.
was made Defendant No. 7. Sita Ram, Ganesh, Bechni, Rajwanti, Bhoju and Bhuwel
were Defendants 8 to 13 respectively. We have seen the plaint. The Suit is
merely for redemption of mortgage. In the suit, as regards the transfers, it is
averred as follows: 4. That Ram Charan Sonar, mortgagee right in respect of
part of the mortgaged house given in Schedule Aa of the plaint to Ram Charan
deceased Ram Charan Teli transferred it to the defendants 5 and 6 who have been
in possession thereof as transferees from the mortgagee and the remaining
portion of the house Schedule Aa of the plaint has been in possession of the
defendants 1 and 2 as a mortgagees.
That Ram Charan Sonar had executed a fictitious mortgage deed in favour of
Hanuman, defendant No. 7 in respect of house of Schedule Ba of the plaint and
thereafter the defendants 1 and 2 transferred the said house in favour of Ram
Raj and Laxman, defendants 3 and 4 and their possession will be treated as of
is no averment that the sale deeds are not genuine and/or not binding. No
declaration, challenging the Sale Deeds of 26th October, 1942 and 4th December, 1948, has been sought. The only relief claimed is for
redemption of mortgage. At this stage it must be mentioned that in para 10 of
the plaint there is a reference to Suit No. 17 of 1914. This shows that
Respondent No. 1 and her predecessors in title were aware of the pleadings in
that suit and were thus aware that as far back as 1914/1915 Ram Charan Sonar
and his brother Swaroop Sonar had made a claim adverse to the estate. Seven
written statements were filed by the various sets of Defendants. A large number
of defences were taken up. For purposes of this Appeal we do not need to
reproduce or deal with all the defences. The main defences were that the
persons from whom 1st Respondent got title were not heirs of Lakshamania and
that they had no right to transfer the equity of redemption. It was also
claimed that the old houses had fallen down and Ram Charan Sonar and Swaroop
Sonar had, to knowledge of all, constructed new houses on the land and were
occupying those as owners. It was claimed that Ram Charan Sonar and Swaroop
Sonar had perfected title by adverse possession. It was further claimed that
the suit was barred by limitation. The transferee Defendants also took up
defence under Section 41 of the Transfer of Property Act. In an additional
written statement filed by Defendants 1 to 4 it was also contended that on the
date the suit was filed the Plaintiff had no title as the earlier sale deeds
were invalid and that the subsequent sale deeds of 25th March 1963 did not cure the defect. This Suit was dismissed by the
Trial Court on 20th
March, 1967. The Trial
Court held, on proper appreciation of evidence, that it had not been proved by
the 1st Respondent or on her behalf that her predecessors in title were heirs
of Smt. Lakshamania. It was noted by the Trial Court that the predecessor in
title were party defendants in the Suit and yet none had stepped into the
witness box in order to prove that they were the heirs. The Trial Court took
note of the fact that some documents had been relied upon to prove the
relationship. The Trial Court correctly held that no reliance could be placed
on those documents.
Trial Court noted that an admitted relative i.e. one Smt. Mantorani gave
evidence and stated on oath that some of the predecessors in title of the 1st
Respondent were not heirs of Lakshamania. The Trial Court, which was the best
judge of her testimony and demeanor, believed her testimony.
Trial Court held that the 1st Respondent had acquired no right, title or
interest in the suit property and was not entitled to claim redemption. The
Trial Court also gave a finding that the predecessors in title of the 1st
Respondent had full knowledge of the transactions of mortgage and sale by Ram
Charan Sonar and his brother Swaroop Sonar. The Trial Court noted that in the
mortgage deed and the sale deed executed by the brothers and then by Defendants
1 and 2 they had claimed themselves to be owners. The Trial Court noted that
none of the admitted heirs of Lakshamania had, in spite of knowledge of such
claims, made any protest or filed a suit. The Trial Court held that the suit
was barred by limitation. The Trial Court also held that Ram Charan Teli as
well as Ramraj and Lakshman were bona fide purchasers for value without notice.
Being aggrieved by this Judgment 1st Respondent filed Civil Appeal No. 149 of
1967. The first Appellant Court found, on a proper appreciation of evidence,
that Ram Charan Sonar and Swaroop Sonar had been making claims to be owners of
the property, ever since the death of Lakshamania, and that no heir of
Lakshamania had refuted this claim. The first Appellate Court also noted that
the predecessors in title of the 1st Respondent had not stepped into the
witness box to prove that they were related to Lakshamania. The first Appellate
Court also held that the documents relied upon by the 1st Respondent viz Ex.
Ex. 22 would not establish relationship as the persons who could give the best
evidence had been available and had not stepped into the witness box. The first
Appellate Court noted that the only family member who gave evidence was Smt.
Mantorani and she had deposed that some of the predecessors in title of the 1st
Respondent were not related. The first Appellate Court thus held that it was
not proved that the predecessors in title of the 1st Respondent were related to
Smt. Lakshamania. The first Appellant Court
also held that the Suit was time barred so far as the Mortgage Deed of 12th September, 1916 and the Sale Deed of 26th October, 1942 were concerned. The first Appellate
Court noticed that the Sale Deed dated 26th October, 1942 was for a sum of Rs. 800/- which
created an interest in excess of the one held by the alleged mortgagee.
first Appellant Court held that the Suit against the
purchasers was barred by Article 134 of the Limitation Act.
these findings the Civil Appeal was dismissed on 20th March, 1967. 1st Respondent then filed Second Appeal No.
of 1973. To be noted that the question whether or not the predecessors in title
of the 1st Respondent were heirs of Smt Laxmina was purely a question of fact.
It went to the root of the case. That it was purely a question of fact was also
noted by the High Court. This is clear from the fact that in the Judgment it is
recorded as follows: "The second point before the lower appellate court
related to the plaintiff's right to sue. The finding that Sitaram was not the
son of Paltan and Bechni and Rajwanti were not the daughters of Gajadhar and
Madho respectively, is undoubtedly a finding of fact, but here again it was
contended by Mr.
Choudhary that here the finding is vitiated by errors of law and
procedure." (emphasis supplied) In spite of so noting the High Court then
proceeds to re-appreciate evidence in a Second Appeal. Reliance is placed on
Exs. 20, 21 and 22 to arrive at a finding that these documents established the
relationship. The High Court holds that non examination of the predecessors in
title of the 1st Respondent did not matter as they would only have confirmed
the statements in these documents. The High Court disbelieves evidence of Smt.
Mantorani without any cogent reasons. High Court tries to justify its
appreciation of evidence in the following manner:
arrived at by the lower appellate court were vitiated by an error of law in
excluding from consideration the documentary evidence on this question The law
on the subject is very clear. Even under the unamended Section 100 of the Code
of Civil Procedure, the Court could only interfere on a question of law. As
admitted by High Court the question, whether the predecessors in title were
heirs of Lakshamania was purely a question of fact. Both the Courts below had
given concurrent findings that it was not proved that the predecessors in title
of the 1st Respondent were related to Smt. Lakshamania. The justification
sought to be given by the Judge that there was an error of law in excluding
documents from consideration is patently wrong. Both the Courts below had not
excluded the documents from consideration. Both the Courts below had considered
the documents. Both the Courts below had rightly held that mere statements in
documents prepared by concerned/interested parties cannot establish proof of
facts stated therein.
who could establish the relationship were available.
were party Defendants to the suit. Both the Courts below had rightly noted that
these parties had chosen not to step into the witness box. In our view both the
Courts below had correctly appreciated the evidence and arrived at the correct
conclusion. The High Court in re-appreciating evidence and arriving at a
contrary conclusion erred not only in law but also on facts. To be remembered
that Defendants 3 to 7 were outsiders. They were not members of the family. As
they had denied relationship the same had to be established. It had to be
established in a manner which would give them an opportunity to repudiate it.
Mere statements made by interested family members in earlier documents would
not bind them or be proof against them. Now let us see whether the reliance on
these documents is justified. The documents relied upon are Exs. 20, 21 and
Exs. 20 and 21 were documents in which Sitaram described himself as son of
Paltan. One fails to understand on what basis the Judge holds that this
statement of Sitaram in the documents would prove relationship. Sitaram is
party Defendant No. 8. He is available to give evidence. He chooses not to step
into the witness box. In such circumstances both the Courts below had correctly
held that no reliance could be placed on these documents as the person who made
the statement chose not to subject himself to cross-examination. We also find
very strange the comment of the High Court that had he stepped into the witness
box he would have confirmed the statement in these documents. The High Court
seems to have forgotten that parties may make statements in documents which are
not true but that they may not be willing to support those statements in the
witness box because they would be subject to cross-examination and the falsity
of the statement established. The other document relied upon by the High Court
is Ex. 22. This is the Will of one Nauragi. In this Will Bechni is described by
Nauragi as her daughter. The Court below had rightly noted that this did not
prove that Bechni was daughter of Gajadhar. The Will does not say so. We fail
to understand how the High Court presumes that this establishes that Bechni is
daughter of Gajadhar. More importantly Bechni is Defendant No. 10. She does not
step into the witness box to depose that she is daughter of Gajadhar and/or to
support the Will. The Courts below had thus rightly held that no reliance could
be placed on this document. Thus the finding of the High Court, in the Second
Appeal, cannot be sustained at all. Both the Courts below were right in
concluding that it had not been established that the predecessors in title of
the 1st Respondent were related to Smt. Lakshamania or Shri Narayan. Both the
Courts below were right in holding that the 1st Respondent thus acquired no
title and had no right to claim redemption. The 1st Respondent could thus not
maintain the suit and the same should have been dismissed on this ground
itself. At this stage it must be mentioned that Mr. Chaudhary sought to support
the finding of the High Court by submitting that Ram Charan Sonar and Swaroop
Sonar had in the written statement filed in Suit No.
1914 given a genealogy of the family and that that genealogy established the
relationship. We see no substance in this submission. The Judge has not based
his findings on that genealogy. In 1914 neither Sita Ram nor Bechni were born.
That genealogy does not show Defendants 8 or 9 or 10 or 11 or 12 or 13. Thus
that genealogy does not establish relationship. If anything that genealogy
disproves case that these Defendants were relations. In any case a genealogy
prepared by Ram Charan Sonar and Swaroop Sonar would not bind Defendants 3 to
7. In this view of the matter nothing further requires to be considered.
However before we part it must be mentioned that the High Court also seriously
erred in reversing the finding of both the Courts below that the Suit was
barred by limitation. This Suit was governed by the Limitation Act of 1948. Arts.
134 and 148@@ JJJJJJJ read as follows: 134. To recover possession Twelve When@@
JJJJJJJJJJJJJJJJJJ the transfer of immovable years becomes known property
conveyed or to the plaintiff: bequeathed in trust or mortgaged and afterwards
transferred by the trustee or mortgagee for a valuable consideration.
Against a mortgagee Sixty When the right to to redeem or to years redeem or to
recover possession of recover possession immovable property accrues: mortgaged.
Suit for redemption of mortgage could be filed within 60 years. But if the
mortgagee had created an interest in excess of the right enjoyed by him then to
recover possession against the third party the Suit had to be filed within 12
years of the transfer becoming known to the Plaintiff. The rational in cutting
down the period of 60 years to 12 years is clear. The 60 years period is
granted as a mortgagee always remains a mortgagee and thus the rights remain
the same. However when an interest in excess of the interest of the mortgagee
is created then the third party is not claiming under the mortgagee. The
position of such a person could not be worse than that of a rank trespasser who
was in open and hostile possession. As the title of the rank trespasser would
get perfected by adverse possession on expiry of 12 years so also the title of
such transferee would get perfected after 12 years. The period of 12 years has
to run from the date of knowledge by the Plaintiff of such transfer. It is
always for the party who files the Suit to show that the Suit is within time.
in cases where the suit is filed beyond the period of 12 years, the Plaintiff
would have to aver and then prove that the Suit is within 12 years of his/her
knowledge. In the absence of any averment or proof, to show that the suit is
within time, it is the Plaintiff who would fail.
a document is registered the date of registration becomes the date of deemed
knowledge. In other cases where a fact could be discovered by due diligence
then deemed knowledge would be attributed to the Plaintiff because a party
cannot be allowed to extend period of limitation by merely claiming that he had
no knowledge. As set out above Swaroop Sonar was claiming ownership rights from
as far back as 1914/1915. It is not the Plaintiffs case that her predecessors
were not aware of Suit No. 17 of 1914 or the pleadings therein. On the contrary
in para 10 of the Plaint a mention is made about this suit. This clearly shows
that predecessors in title were aware of the suit and the claim made therein. They
and/or the other heirs of Smt.
who were alive at that time, chose not to challenge Swaroop Sonar within 12
years of such assertion.
stated above Swaroop Sonar was not a mortgagee. So his title got perfected by
adverse possession long before 1960 when this suit was filed. It is clear that
the predecessors in title had informed Plaintiff about Suit No. 17 of 1914.
for the Plaintiff to aver and prove that her suit was in time against Swaroop
Sonar and his family members. There is no averment or proof as to how the suit
was in time.
from this, as set out above, other interest in excess of rights of mortgagee
had been created. They are: (a) Ram Charan Sonar created a mortgage for 10
years, of the southern house, on 12th September 1916. (b) Ram Charan Sonar and
Swaroop Sonar sold a part of the northern house to Ram Charan Teli on 26th
October 1942. (c) On 4th December 1948 a sale takes place in favour of Ramraj
is registered on 15th January 1949. In the Plaint there is no averment or
statement that the predecessors in title of the 1st Respondent were not aware
of these transactions. In evidence there is no deposition that the predecessors
in title were not aware of these transactions.
mortgagee i.e. Hanuman and the purchasers i.e. Ram Charan Teli and Ramraj and
Lakshman were put in possession of the property sold to them. There was no
attempt to hide these transactions. The moment that the respective person i.e.
Hanuman, then Ram Charan Teli and then Ramraj and Lakshman took possession the
predecessors were put to notice that some right had been created in favour of a
little diligence and minimal enquiry it could have been found out what that
right was. The fact that there is no evidence that the predecessors in title
were not aware clearly establishes that they were aware. The suit is only filed
on 6th December 1960. On this date it is clearly time barred so far as
transactions at (a) and (b) above are conscerned. Yet the High Court holds that
the suit is not time barred and grants redemption of the entire property.
now see the erroneous and absolutely fallacious reasoning adopted by the High
Court to hold that the suit was not transactions. barred by limitation in
respect of these two In respect of the mortgage dt. 12th September 1916 the High Court states as follows: "So far as
the mortgage deed of 1916 Ex.A/4- is concerned, it has already been seen above
that Hanuman, defendant No. 7, thus clearly stated that he was not in
possession under that Mortgage deed. The mortgage has been re-deemed
vide-compromise in Suit No. 85 of 1959 dated the 11th April, 1962, between Ram,
who was the plaintiff in that suit and is third defendant in the present suit,
and Hanuman, Mahadeo, Sankatha and others of whom Hanuman, Mahadeo and Sankatha
are defendants Nos. 1, 2 and 7 respectively in the present suit. At any rate
the usufructuary mortgage is not a kind of transfer which could attract the
applicability of Article 134 of the schedule to the Indian Limitation Act,
I hold that the present suit could not be said to be barred by limitation under
Article 134 by reason of the transfers made by Ex.A/4." In so holding the
High Court conveniently ignores the fact that the redemption only took place in
1959. Long before that the right to make a claim, provided predecessors in
title stepped into shoes of mortgagor, against Hanuman was already time barred.
The redemption by Ramraj and Lakshman was not on behalf of the mortgagors but under
an independent right claimed by them. Therefore the redemption did not extend
limitation or give any fresh right to the 1st Respondent or her predecessors.
It must be remembered that Ramraj and Lashman were permitted to redeem in their
own right in spite of objections by the predecessors in title of the 1st
Respondent. Also it is entirely erroneous to hold that Article 134 would not
apply to a transaction of mortgage where an interest in excess of the right of
the mortgagee has been created. Thus the finding of the High Court on this
count cannot be sustained at all.
respect of the sale in favour of Ram Charan Teli on 26th October 1942 the High
Court holds as follows: "Another@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ sale deed referred to was that
dated the 26th October, 1942 in favour of Ram Charan Teli, who in his turn
executed a sale deed dated the 20th December, 1954 in favour of defendants No.
5 and 6. This refers to a part of the house under Mad 'As' of the plaint.
Defendant No. 5 is Lakhan Kandu who appeared as D.W.3 and gave his name as Ram
Lakhan Sahu. The plea of the bar of limitation under Article 134 was based on
paragraph 18 of the written statement of defendants Nos. 5 and 6 in which it
was stated that Ram Charan Sonar sold the house as owner; Paltan's family
members were aware of it, but they never raised any objection within 12 years
thereof, nor did they file any suit, hence, the suit is barred by limitation
prescribed by Article 134. In cross-examination Ram Lakhan Sahu (D.W.3) stated:
(Translated into English for convenience to the Hon'ble Judges):
para 18 of the written statement the family members of Paltan had knowledge.
How it is written, I do not know.
this thing is written rightly or wrongly I cannot tell." This statement of
Ram Lakhan Sahu (D.W.3) knocks the bottom out of the plea raised by defendants
Nos. 5 and 6 that the suit for possession in respect of the house under Mad
'as' which was under their possession and which they had purchased from Ram
Charan Teli, who in its turn had purchased it under a sale deed dated the 26th
October, 1942 - Ex.A/2- was barred by limitation. The limitation prescribed by
Article 134 of the Schedule to the Indian Limitation Act, 1908, for recovery of
possession of immovable property which was mortgaged and is afterwards
transferred by the mortgagee for a valuable consideration, was 12 years from
the date when the transfer becomes known to the plaintiff. The plaintiff had
purchased the properties in suit in the year 1960 and the suit was filed on the 6th Dec., 1960. It is the knowledge of her
predecessors-in-interest which mattered for purposes of computating the
limitation of 12 years prescribed by the said Article 134. The
predecessors-in-interest or the persons from whom the plaintiff had purchased
the property were the members of the family of Narayan. Paltan was admittedly a
collateral of Narayan and when defendants Nos.
6 pleaded in paragraph 18 of the written statement that the family members of
Paltan were aware of the purchase of the property of Ram Charan Sonar as owner,
they meant the predecessors-in-interest of the plaintiff from whom she had
purchased the properties in suit. The sworn statement of Ram Lakhan Sahu
(D.W.3) wipes out the plea contained in paragraph 18 of the written statement.
But Ram Lakhan Sahu (D.W.3) had also stated in his examination-in-chief that :
into English for convenience to the Hon'ble Judges):
I got the sale deed executed by Ramlakhan Teli, at that time Sitaram had objected."
And in cross-examination he stated: (translated into English for convenience to
the Hon'ble Judges):
tells him as son of Palton but he is not his son. When Sitaram had come to make
objection against my sale deed, I was knowing him even from before it. I did
not write in my written statement about the point of objection of
Sitaram." Looking to the evidence it appears that while it could be said
that the plaintiff or her predecessors-in-interest were aware of the fact that
the defendants Nos. 5 and 6 were exercising rights of full ownership over the
part of the house under Mad 'Aa' since the purchase made by defendant no. 5 in
the year 1954, and saw that house being made packka two or three years
thereafter, vide- statement of Sukh Deo (P.W.4), I have not been able to find
any evidence to show that they were aware of the fact that Ram Charan Sonar had
sold the full ownership in the house to Ram Charan Teli by the sale deed dated
the 26th October, 1942 (Ex.A/2). The finding that the suit was barred by
limitation under Article 134 in respect of the house purchased by defendant no.
5 under Mad 'Aa' is thus without any basis and being based on no evidence it is
vitiated in law and liable to be set aside as such." (emphasis supplied)
Thus the High Court seeks to hold that the suit is in time on the ground that
Lakhan was not able to sustain his averment that the Plaintiffs predecessors
had knowledge of the nature of the sale executed on 26th October 1942. The High Court has seriously erred in forgetting that it
was for the Plaintiff to aver and to prove that her predecessors had no
knowledge of this sale or its nature. There is no such averment or proof. The
High Court is itself commenting on the fact that it has not been able to find
any evidance that the predecessors had knowledge. What the High Court forgets
is that in para 4 of the plaint a referance is made to this sale. Thus the 1st
Respondent and her predecessors had knowledge of this sale. It was for them to
aver and prove that their knowledge was within 12 years of the suit. It was for
them to aver and prove that they had no knowledge of the nature of this
transaction. Even after repeated questions from Court the learned counsel for
the Respondent could not show to us any averment or proof that this knowledge
was within 12 years of the suit. Also to be remembered that Lakhan purchased
from Ram Charan Teli on 20th
December, 1954. How
did the High Court expect him to depose about knowledge of Plaintiff
predecessors about the transaction of 26th October, 1942. To be remembered that Ram Charan
Teli was put in possession of the property and started staying there with his
family. It is impossible to believe that the predecessors would not know that a
stranger had started residing there. A simple enquiry would disclose under what
rights he was staying there. Advisably there is no averment that the
predecessors were not aware of this transaction or its nature and advisably
nobody stepped into the witness box to state that they were not so aware. There
was no burden or duty on the Defendants to prove knowledge on part of the
Plaintiff. It is only after, and if, the Plaintiff first averred and then
proved that the suit was within 12 years of the date they gained knowledge of
the transaction that the burden will have shifted on the Defendant to show that
the Plaintiff claims is false. In the absence of any such averment and proof
the Plaintiff must fail. No question arose of the Defendants having to show
that the Plaintiff or her predecessors had knowledge.
casting the burden on the Defendant and by ignoring the fact that the Plaintiff
had neither averred nor proved that her predecessor did not have knowledge of
the transaction prior to 12 years of the filing of the suit, the High Court has
seriously erred in law. The High Court has also seriously erred in considering
bona- fides of the transaction of 20th December 1954. The remedy was already barred by
reason of the transaction of sale dt. 26th October 1942. Ram Charan Teli had perfected his
rights in the property as that sale was not challenged within 12 years of
knowledge of the Plaintiffs predecessors. By the sale of 20th December 1954 Ram Charan Teli was selling rights
which he had acquired. He was not selling mortgagees interest or rights. Thus
considering bona-fides of the purchasers under transaction of 20th December 1954 did not arise at all.
otherwise in Article 134 the Legislature has purposely omitted the words bona-
fide. All that is required is a purchaser for valuable consideration. It is
nobodys case that the sales of 26th October 1942
and/or 20th December
1954 were not for
valuable consideration. Also pertinent to note that the High Court does not
hold that the transaction of 26th October 1942
was not bonafide. Thus Ram Charan Teli would also get the protection of Section
41 of the Transfer of Property Act. Thus the sustained at all.
of the High Court in this regard cannot be In respect of the transaction of
sale dt. 4th December
1948 the High Court
holds that the date of knowledge would be date of registration on 15th January 1949 and that the suit was within 12
years of that date. However what the High Court ignores is that the sale is
also by the son of Swaroop Sonar. As set out above Swaroop Sonar had perfected
title by adverse possession. Therefore, even if the Plaintiff had a right, no
relief could have been granted in respect of the share of Swaroop Sonar. Thus
the Judgment of the High Court is unsustainable also on the question of
limitation. On the above mentioned two grounds the Suit should have been
dismissed. Before we pronounce the Order the authorities relied upon by Mr.
Choudhary have to be dealt with. Mr.
has relied upon Patel Bhudarbhai Maganbhai v.
Khemabhai Ambaram reported in (1997) 10 S.C.C. 611.
this case one Bai Jivi had mortgaged the property to one Kana. The wife of Kana
executed the mortgage in favour of one Kuber. Bai Jivi then filed a suit for
redemption of the mortgage. The defence taken up was that Bai Jivi had asserted
a right as an owner by executing a mortgage deed in favour of Kuber and that
this mortgage deed was in the knowledge of the plaintiff and, therefore, the
suit for redemption which has been filed beyond the period of 12 years could
not be maintained. This Court held that once a mortgagee always a mortgagee.
This Court further also observed as follows: "It is seen that Bai Jivi or
her successor-in-interest were not made parties either to the second mortgage
executed on 31-5-1935 or to the suit for redemption nor any acknowledgment in
that behalf has been pleaded or established. It is also seen that in the plaint
the only pleading was that Hati became aware of the execution of the mortgage
in favour of the second mortgagee in 1935. It is true that Bai Jivi had
knowledge of assertion of any hostile title either as an owner or of any other
title detrimental to her interest and acquiesced to it; perhaps the contention
bears relevance." This Court further held that the mortgage of Kuber had
been redeemed by Shivi and, therefore, Shivi only continued as a mortgagee and
against her the period of limitation was 30 years. In the present case it is to
be seen that there was an absolute sale in favour of Ram Charan Teli on 26th October, 1942. Then, on 4th December 1948, there was an absolute sale in
favour of Ramraj and Lakshman. The mortgage executed in favour of Hanuman was
redeemed not by Ram Charan Sonar and his brother but by Ramraj. Ram Charan
Teli, Ramraj and Lakshman were claiming title not as mortgagees or
sub-mortgagees but in their own rights. On the above quoted observations of
this Court it would be clear that by executing these documents Ram Charan Sonar
and Swaroop Sonar were claiming title hostile to the mortgagor and had created
absolute interest in the property in favour of third parties. The suit against
those third parties would become barred if not filed within a period of 12
years. This authority, therefore, is not of much assistance to Mr. Choudhary.
For the same reason the cases of Krishna Prosad v. Baraboni Coal Concern Ltd.
reported in AIR 1937 P.C. 251, Jai Nandan v. Umrao Koeri reported in AIR 1929
Allahabad 305, Lachman v. Munia reported in AIR 1925 Allahabad 759 and Iswar
Dass Jain v. Sohan Lal reported in (2000) 1 SCC 434 can be of no assistance to
the 1st Respondent. Mr. Choudhary also relied upon the case of Lalji Jetha v.
Kalidas reported in AIR 1967 SC 978. In this case one Sundarji mortgaged two
shops in Jamnagar on 11th December, 1907. The mortgagee was put in possession.
On 25th August, 1930 family members of Sundarji, who had
in the meantime died, entered into an Agreement to Sell the two shops and
certain other property to the mortgagee. After having entered into such an
Agreement to Sell the family members of Sundarji sold the said shops to one
Lalji Jetha and Kanji Jetha on 10th September, 1930. The mortgagee filed a suit for specific performance of the Agreement
to Sell and for setting aside the subsequent Sale Deed. This Court ultimately
held that the Sale Deed could not be declared to be void but that the Sale Deed
was subject to the Agreement to Sell in favour of the mortgagees. In our view
this Judgment has no application to the facts of the present case and is
entirely irrelevant. Mr. Choudhary also relied on the case of Sant Lal Jain v.
Avtar Singh reported in AIR 1985 SC 857. In this case a lease has been created
in favour of a party. The lessee gave a licence to a third party for a specific
period. That licence was terminated and a suit for recovery was filed by the
meantime the licensee purchased the property from the owner. This Court held
that even though the licensee may have purchased the property from the
registered owner, still the licensee could not, deny the title of the lessor.
This Court held that the licensee must first surrender possession and seek his
remedy separately in case he has acquired title. There could be no dispute with
the proposition of law. But they have no application so far as Swaroop Sonar
and the purchasers under sale deeds of 12th October 1942 and 4th December 1948 are conscerned. These parties were not claiming any rights
under the mortgage. For the above reasons the Appeal is allowed. The impugned
Judgment is set aside. The suit will stand dismissed. In the view which we have
taken, it is not necessary for us to consider the cross objections which had
been filed by the 1st Respondent. This Appeal stands disposed of accordingly.
In the circumstances of the case there will be no order as to costs.